Under the Coronavirus Job Retention Scheme, all UK employers will be able to access support to continue paying part of their employees’ salary for those employees that would otherwise have been laid off during this crisis. This scheme is available to all employers, there are no requirements.

 

Full details of the recent HMRC update can be found on HMRC’s website here.

The information on this page was last updated on 1st June 2020. For ease we have highlighted the latest guidance in light blue. 

Claiming the furlough grant

The scheme has been extended until 31 October 2020 for all sectors, employers can use this grant scheme at any time during this period.

From August 2020 there will be more flexibility introduced to the scheme so that furloughed employees can work part time and be on the furlough scheme at the same time. Details of how this will work will be made available before the end of May 2020, and there are no details available at the moment.

You do not have to place all your employees on furlough. The minimum length of time for being furloughed and qualifying for the grant is 3 weeks. Furlough pay for workers who have been unable to work due to Covid-19 can be backdated to 1 March 2020.

What employers can claim 

The Government will fund 80% of furloughed workers wage costs, up to a cap of £2,500 per month, plus the associated Employer NIC and minimum Employer Auto-Enrolment Pension contributions. For full time and part time employees, the employee’s actual salary before tax, as of 28 February 2020, should be used to calculate the 80%. Some historic regular overtime, fees, compulsory commission and contractual bonuses can be averaged included in the calculation, but not discretionary payments (see more detail below).

It is at the employer’s discretion whether to fund the difference of the 20%. The Government statement states that only 80% of employment costs will be funded via the grant scheme. Employer’s National Insurance Contributions and minimum employer Automatic Enrolment Pension Contributions on any additional top-up salary will not be funded through this scheme. Nor will any voluntary automatic enrolment contributions above the minimum mandatory employer contribution of 3% of income above the lower limit of qualifying earnings (which is £512 per month until 5th April and will be £520 per month from 6th April 2020 onwards).

The salary to be used when calculating 80% of employees’ wages is regular payments the employer is obliged to make, including:

  • regular contractual wages
  • non-discretionary overtime
  • non-discretionary fees
  • non-discretionary commission payments
  • piece rate payments

The following should not be included:

  • discretionary payments of tips, bonus, commissions which the employer was under no contractual obligation to pay
  • non-cash payments
  • non-monetary benefits like benefits in kind (such as a company car) and salary sacrifice schemes (including pension contributions) that reduce an employees’ taxable pay

All employee’s subsidised furlough pay claimed under the grant must be paid to them in the form of money. No part of the grant should be used to pay for the provision of benefits or a salary sacrifice scheme, and the employer cannot retain any of the grant as a fee. In relation to salary sacrifice arrangements in place, HMRC agrees that COVID-19 counts as a life event that could warrant changes to salary sacrifice arrangements, if the relevant employment contract is updated accordingly.

Reminder of the potential pitfalls when calculating furlough grant claims for employees with variable salary.

HMRC guidance for calculating the furlough grant for employees with variable pay, (typically employees who have zero hours contracts or regular contractual overtime), states that for each pay period of furlough pay, the reference pay that is used for the furlough grant calculation is the higher of either:

  • the calculated average gross pay for the relevant pay period (weekly or monthly) based on the pay received in the previous tax year before the period of furlough began, or
  • the actual gross pay received in exact same pay period (week or month) in the previous tax year.

It is not a choice of opting to use the average method or the corresponding previous year pay period. Employers have to do a comparison week by week/month by month, and use the higher figure as the reference pay for the calculation of the furlough grant.

For weekly paid employees on variable pay, this whole exercise will be time consuming, and, potentially, the reference pay for the calculation of the furlough grant for each employee will change week by week depending on the previous year’s gross pay in the corresponding pay period.

Qualifications for claiming the grant

All businesses, including charities, recruitment agencies and public authorities are eligible to claim under the grant if they have:

  • created and started a PAYE payroll scheme on or before 19 March 2020
  • enrolled for PAYE online
  • a UK bank account

Employers can only claim for furloughed employees that were on PAYE payroll on or before 19 March 2020 and which were notified to HMRC on an RTI submission on or before 19 March 2020.This means an RTI submission notifying payment in respect of that employee to HMRC must have been made on or before 19 March 2020, so new starters on March payrolls will not qualify unless the monthly RTI submission for March was made before that date. Employees that were employed as of 28 February 2020 and on payroll (i.e. notified to HMRC on an RTI submission on or before 28 February) and were made redundant or stopped working for the employer after that date and prior to 19 March 2020, can qualify for the scheme if the employer re-employs them and puts them on furlough.

To be eligible for the grant, when on furlough, an employee cannot undertake work that provides services or generates revenue for, or on behalf of, the employer or any linked/associated organisation. While on furlough, the employee’s will be subject to usual income tax and other deductions via payroll and included on RTI returns.

Employees working reduced hours and reduced pay

If an employee is working on reduced hours and reduced pay, they will not be eligible employees for this scheme, and the grant will not be available in respect of their wages. Employees who are on unpaid leave cannot be placed on furlough unless they were placed on unpaid leave after 28 February due to Covid-19.

Employees on sick leave

Employees on sick leave or self-isolating should get SSP, and can be furloughed after this. Employees who are shielding in line with public health guidance can be placed on furlough.

Variable/zero hours contracts

Employees that are full time, part time, and on flexible/zero hours contracts qualify. For variable/zero hours contracts, if the employee has been employed (or engaged in an employment business) for a full twelve months prior to the claim, you calculate normal pay as the higher of either:

  • The same month’s earnings from the previous year, or
  • The average earnings from the 2019/2020 tax year.

If the employee has been employed for less than a year

If the employee has been employed for less than a year, you can claim for an average of their monthly earnings since they started work. If the employee only started in February 2020, use a pro-rata for their earnings so far. Once you have worked out how much of an employee’s salary you can claim for, you must then work out the amount of Employer NIC and minimum employer pension contribution you are entitled to claim.

PAYE and NIC and pension contributions

PAYE and NIC and pension contributions will continue to apply as normal on grant payments made to furloughed employees. The employees will, therefore, stay on payroll with 80% of gross salary, subject to the £2,500 per month maximum cap.

Claims should be started from the date that the employee finishes work and starts furlough, not when the decision is made, or when they are written to confirming their furloughed status. The change in employment status to a furloughed employee must be confirmed to the employee, and agreed by them, in writing, as furloughing constitutes a change to the terms and conditions of employment.

Calculating furlough claims

Working out the maximum wage amount you can claim

The maximum furlough wage employers can claim is £2,500 a month, or £576.92 a week, (plus associated employer NIC and pension contributions).

HMRC have clarified that if the length of time being claimed  is not a whole pay period, (week or month), employers need to use the daily maximum wage amounts to work out the maximum amount that can be claimed for each employee. This will vary depending on the number of days in the month:

Month                         Daily maximum wage amount claimable under the furlough scheme (80% of gross)

March 2020                  £80.65 per day

April 2020                    £83.34 per day

May 2020                     £80.65 per day

June 2020                    £83.65 per day

When calculating the furlough days in split pay periods, use pro rata calendar days to calculate the furlough pay. For example:

A monthly paid employee with gross salary of £2,400 is put on furlough on 21 March:

  • There are 11 days between 21 March and 31 March
  • Start with £2,400 (employee’s wages)
  • Divide £2,400 by 31 (the total number of days in March)= £77.42
  • Multiply £77.42 by 11 (the number of furlough days in March) = £851.62
  • Multiply £851.62 by 80% – which is £681.30 – this is the furlough pay claimed via the portal (plus associated employers NIC and pension)
  • The gross salary payable on payroll (assuming the employer does not top up wages) is £2,229.70 (£1548.40, 20 days of salary, plus £681.30, 11 days furlough pay)

The maximum amount test for furlough pay is:

  • Monthly maximum of £2,500 divided by 31 days in March = £80.65
  • £80.65 x 11 days of furlough = £887.15
  • The employer claims the lower amount, £681.30, for the employee’s gross pay in March

If an employee is furloughed over two or more pay periods, calculate the maximum amount for each pay period and add them together. For multiple pay periods in one claim, there could be a mixture or daily, weekly and monthly wages.

Working out how much to claim for Employer NIC

Employers can claim reimbursement for the cost of Class 1 Employer NIC paid on the eligible furlough grant paid to an employee (80% of pay capped at £2,500 per month). If the employer chooses to provide top-up salary in addition to the grant, the Employer NIC on the additional top-up salary will not be funded through the furlough scheme.

The total grant for Employer NIC cannot exceed the total amount of employer NIC due. This means that the employer should subtract any Employment Allowance (£3,000pa  in 2019/20 and £4,000 pa in 2020/21) that is used in that pay period. If the employer does not, or does not expect to, pay any Employer NIC in a pay period as a result of the Employment Allowance offset claim, the employer should not claim any Employer NIC costs for furloughed employees in that pay period. If part of the Employment Allowance is used against Employer NIC due in a pay period, then the employer should claim the lower of the Employer NIC grant calculation, and the Employer NIC costs paid across your entire payroll in that pay period.

The total Employer NIC due in a pay period should be apportioned on a daily basis, with the amount apportioned to any qualifying furlough days forming the basis of the amount that can be claimed through the furlough grant scheme.

Calculating NIC that can be claimed

If an employee is furloughed for part of the pay period, the grant calculation needs to take account of the number of days of furlough. For example:

A monthly paid employee, paid £2,400 per month, is furloughed on 21 March 2020. The employee’s gross pay for March is £2229.70, (£1548.40 of wages for 1-20 March (20 days), and £681.30 of furlough pay for 21-31 March (11 days)). The total Employer NIC due for the pay period is apportioned on a daily basis to determine how much Employer NIC can be claimed under the grant:

  1. £2,229.70 (gross pay received including furlough pay) minus £719 (relevant NIC secondary threshold) = £1,510.7 which is the amount liable to NIC
  2. Multiply £1,510.7 by 13.8% = £208.48 – this is the amount of Employer NIC due
  3. Divide £208.48 by 31 (the number of calendar days in the March pay period) = £6.73
  4. Multiply £6.73 by 11 (the number of furlough days in the pay period) = £74.03

The amount of Employers NIC that can be claimed (assuming no Employers Allowance is due to be offset) is £74.03.

Situations where no Employer’s NIC is due

Remember before you claim for Employer NIC on furlough pay, the claim will be nil in the following circumstances:

  • The Employment Allowance reduces Employer NIC across each payroll until the allowance is exhausted. This means that the Employment Allowance will eliminate any Employer NIC claim under the grant until it is fully used/offset. In the 2019 to 2020 tax year the allowance was £3,000 and was available to all employers. From 6 April 2020 the Employment Allowance is £4,000 but is only available to employers whose Employer Secondary National Insurance contributions liability in the previous year was under £100,000.
  • If there is no Employer NIC due then the amount of the grant towards Employer NIC is zero. This could be the case for:
      • apprentices under 25 (category H)
      • employees under 21 (category M)
      • employees under 21 who can defer NI because they’re already paying it in another job (category Z)
Working out how much to claim for employer pension contributions

Employers still need to pay pension contributions on behalf of furloughed employees, and can claim under the grant for these up to the level of the mandatory employer contribution, even if it’s not an auto-enrolment pension.

Employers cannot claim for any pension contributions if there are no pension contributions made, or for employer pension contributions made over the mandatory auto enrolment employer pension contribution level.

To calculate the pension contribution that can be claimed, the employer should calculate the amount of salary that can be claimed from the furlough grant scheme, deduct the Lower Earnings Limit (£512 a month for 2019/20, and £520 a month for 2020/21), and multiply by 3%.

Employer pension contributions can be claimed up to this cap, provided the employer pays the whole amount claimed to a pension scheme for the employee as an employer contribution.

Calculating employer pension that can be claimed via the furlough grant scheme

If an employee is not furloughed for the whole pay period, the calculation needs to take account of the number of days of furlough. For example:

A monthly paid employee, paid £2,400, per month is furloughed on 21 March 2020. The employee’s gross pay for March is £2,229.70, (£1,548.40 of wages for 1-20 March (20 days), and £681.30 of furlough pay for 21-31 March (11 days)). The Lower Earnings Limit for Qualifying Earnings is apportioned on a daily basis to determine how much employer pension contribution can be claimed:

  1. £512 (2019/20 monthly LEL) divided by 31 (calendar days in March pay period) = £16.52
  2. £16.52 is multiplied by 11 furlough days = £181.72 (furlough LEL)
  3. £681.32 furlough pay minus furlough LEL of £181.72  = £499.60 (pensionable furlough pay)
  4. £449.60 x 3% = £14.99

The maximum employers pension contribution that can be claimed for the furlough pay is £14.99.

Future changes to the CJRS furlough Scheme

On Friday 29th May, HMRC issued further information regarding the extension of, and changes to, the Coronavirus Job Retention Scheme (CJRS). There are three significant changes that employers need to be aware of. These are:

  1. From the 1‌‌ July 2020, the scheme will be made more flexible. This will enable employers to bring previously furloughed employees back to work on a part time basis, whilst still being able claim under the scheme for the days when employees are not working.
  2. From the 1‌‌ August 2020, employers will have to start contributing to the wage costs of paying their furloughed staff, and this employer contribution will gradually increase in September and October.
  3. The scheme will close to new entrants from 30‌‌ June.

Part time furloughing

With effect from the 1st‌‌ July 2020, businesses using the furlough scheme will have the flexibility to bring previously furloughed employees back to work part time. Although employers will have to meet the full cost of the salary for the part time work undertaken, including Employers Class 1 NIC and employers pension contributions, employers will still be able to claim the furlough grant for 80% of their employees’ wages, including the relevant Class 1 NIC and pension contributions, for any of the employees’ normal hours that are not worked.

Employers will decide the hours and shift patterns their employees will work on their return to part time work, and this will need to be confirmed in writing. This arrangement will allow employees to work as much or as little as the business needs, and there is no minimum weekly time limit that they can furlough staff for.

Any working hours arrangement agreed between a business and their employee must cover at least one week and be confirmed to the employee in writing, as this is a further temporary variation to the employee’s normal contractual terms and conditions of employment. Each time there is a change to employment terms and conditions, due to furloughing or returning from furlough, or part time furlough, the change must be confirmed in writing.

When claiming the CJRS grant for furloughed hours, the employer will need to report and claim for a minimum period of a week. Employers can still choose to make claims for longer periods, such as on monthly or two weekly cycles, if preferred, so that it is in line with their payroll reporting. Employers will be required to submit to HMRC, via the CJRS claim portal data, details both the usual hours an employee would be expected to work in a claim period and the actual hours worked under the flexible furlough arrangement. Further guidance on the flexible furlough rules and reporting requirements of flexible furlough will be released by HMRC on 12 June 2020.

If employees are unable to return to work, or employers do not have work for them, they can remain on furlough and the employer can continue to claim the CJRS grant for their full hours under the existing rules.

Employer contributions from August

From August, the government grant provided through the CJRS will be slowly tapered and employers will be required to meet some of the cost of the furlough grant:

  • In June 2020 and July 2020, there is no change to the government support. For furloughed employees, employers can claim 80% of wages up to a cap of £2,500, as well as the associated employer NIC and pension contributions on the CJRS grant claimed. It is still the case that for smaller employers, the Employment Allowance of £4,000 has to be fully utilised against the Employer’s NIC before any Employers NIC can be reclaimed from CJRS on the furlough pay. As is the case now, employees cannot carry out work for their employer when they are on furlough, and if they are working employers are required to meet the full cost of the wages.
  • In August 2020, for furloughed employees, employers can continue to claim 80% of salary up to a cap of £2,500 as furlough grant, but they cannot claim the associated Employer NICs and pension contributions. From 1 August onwards, this will be a cost for the employer.
  • In September 2020, for furloughed employees, they will still receive full furlough pay, 80% of salary up to a cap of £2,500, but the employer can only claim back from the CJRS 70% of salary up to a cap of £2,187.50 for the hours the employee does not work. Employers also have to continue to pay associated Employer NICs and pension contributions, in addition to the 10% of furlough pay.
  • In October 2020, furloughed employees will continue to receive full furlough pay, 80% of salary up to a cap of £2,500, but the employer can only claim back from the CJRS 60% of furlough pay up to a cap of £1,875 for the hours the employee does not work. Employers will also have to continue to pay associated Employer NICs and pension contributions, in addition to the 20% of furlough pay.
  • The cap on the furlough grant that can be claimed under the CJRS will be proportional to the hours not worked.

Employers are still able to choose to top up employee wages above the scheme grant at their own expense if they wish.

Furlough scheme closed to new entrants from 30‌‌ June

From 30‌‌ June 2020, the furlough scheme will be closed to new entrants, and from this point onwards, employers will only be able to furlough employees that they have furloughed for a full three-week period prior to 30‌‌ June, and included on a furlough claim under the CJRS.

This means that the final date by which an employer can furlough an employee for the first time will be 10‌‌ June 2020, for the current three-week furlough period to be completed by 30‌‌ June.

The dates of eligibility to furlough have not changed, so employees who an employer wishes to furlough must still have been on payroll and included on an RTI return to HMRC before March 19 2020.

Employers will have until 31‌‌ July 2020 to make any claims in respect of the period to 30‌‌ June. From 1 July 2020, claim periods will no longer be able to overlap calendar months, and employers who have previously submitted claims with periods that overlapped calendar months will no longer be able to do this going forward. This is necessary to reflect the forthcoming changes to the furlough scheme.

It has been confirmed that the CJRS furlough scheme will close completely on 31 October 2020.

Detailed guidance on changes from 1 July 2020

Contractual changes

The affected workers will need to be designated as ‘furloughed workers’, and will need to be notified in writing of this change to their employment status, in accordance with existing employment law. It is likely that most employees will agree to the terms. For those workers who do not agree, they will either have to take unpaid leave for an indeterminate period or employers are likely to have to go down the redundancy route. The employment status for furloughed employees will change, but their employment record remains continuous. The employer must decide whether to furlough employees, it is not an employee decision, although the employee needs to agree to it. When employers are making decisions who to place on furlough, equality and discrimination laws will apply in the usual way. If appropriate, seeking employment law advice is recommended.

Being on furlough is a mandatory suspension from work, and furloughed employees are banned from doing any work on behalf of their employer. Also, they cannot accept or be paid for any work from another business, unless it is contractually agreed with the employer. It is effectively like being on gardening leave.

Furloughed employees can undertake voluntary work, for example for the NHS and other organisations supporting communities during this period. Employees can also undertake training whilst on furlough as long as it does not provide services to or generate revenue for or on behalf of the employer. If workers are required to complete online training courses whilst they are furloughed, then they must be paid at least the NLW/NMW for the time spent on the required on-line training, even if this is more than the 80% of their wage being received on furlough under the grant scheme.

HMRC have now stated that a record of changes to the employment contract communication must be kept for five years. This gives an indication of the length of retrospective review time that HMRC will be adopting.

Claiming via the portal

The HMRC online service for claims was made available on 20 April 2020, and a calculator is also available for employers to check the claims being made. The online calculator includes variable and static pay.

Employers can only claim for periods when an employee was on furlough, the employee must have already been furloughed for a minimum of 3 weeks for a claim to be made. Employers cannot make more than one claim during a claim period – claims should be made shortly before or during running payroll. The claim should be for all furloughed employees in each period at one time –retrospective changes cannot be made to the claim. Claims can be backdated from 1 March 2020 where employees have already been furloughed from that date. A claim cannot start any earlier than the date the employee was first furloughed.

Employers must ensure that they have all the relevant information and calculations to hand for each relevant employee, as the application for each claim needs to be done in one session, and there is no save and return option. Sessions will time out after 30 minutes of inactivity.

Once the employer has submitted the claim, they will see a confirmation screen where a claim reference number will be provided. The employer should print the confirmation screen or note down the claim reference number provided – there will be no email confirmation from HMRC regarding the claim. Payment will be received into the employer’s nominated bank account in 6 working days. If a payment is not received by then, HMRC have requested that employers do not contact them about a claim payment until 10 days after the claim has been made.

Employers can advise employees that the claim has been made. HMRC are not able to respond to employee queries, they can only deal with employers in relation to this matter.

It is the employer’s responsibility to check the accuracy of your claim, no changes can be made once the claim has been submitted. Payments may be withheld or will need to be repaid in full to HMRC if the claim is based on dishonest or inaccurate information, or is found to be fraudulent. A record of the calculations and claims made must be held for 5 closed tax years for HMRC compliance checks.

Businesses, and agents who are authorised to act on behalf of clients for PAYE matters, will be able to submit the claim. However, file only agents, including Payroll Bureaus, will not be able access the service due to data protection reasons. Payroll Bureaus will be able to provide you with the information required for the claim to be made, but will not be able to access the portal on your behalf.

HMRC will be contacting businesses directly over the coming weeks to advise them what they need to do.

What you’ll need to make a claim

Employers should discuss with their staff and make any changes to the employment contract by agreement as detailed above. Employers may need to seek legal advice on the process. If sufficient numbers of staff are involved, it may be necessary to engage collective consultation processes to procure agreement to changes to terms of employment.

To claim, you will need:

  • a Government Gateway (GG) ID and password – if you don’t already have a GG account, you can apply for one online, or by going to GOV.UK and searching for ‘HMRC services: sign in or register’
  • be enrolled for PAYE online – if you are not registered yet, you can do so now, or by going to GOV.UK and searching for ‘PAYE Online for employers’
  • your PAYE reference number
  • the number of employees being furloughed
  • the claim period (start and end date)
  • amount claimed (per the minimum length of furloughing of 3 weeks)
  • your bank account number and sort code
  • your contact name
  • your phone number
  • if you have fewer than 100 furloughed staff – you will need to input information directly into the system for each employee
  • if you have 100 or more furloughed staff – you will need to upload a file with information for each employee; they will accept the following file types: .xls .xlsx .csv .ods.

You will need to calculate the amount you are claiming. HMRC will retain the right to retrospectively audit all aspects of your claim.

You can only submit one claim at least every 3 weeks, which is the minimum length an employee can be furloughed for. Claims can be backdated until the 1 March if applicable.

Once HMRC have received your claim and you are eligible for the grant, they will pay it via BACS payment to a UK bank account.

You should make your claim in accordance with actual payroll amounts at the point at which you run your payroll or in advance of an imminent payroll.

You must pay the employee all the grant you receive for their gross pay, no fees can be charged from the money that is granted. You can choose to top up the employee’s salary, but you do not have to.

HMRC have stated that all records must be retained for a period of 5 years. HMRC will be retrospectively undertaking compliance checks on the claims made, and this indicates the time period under which they envisage checking payments/grants claimed for furloughed employees.

 

National Living Wage/National Minimum Wage

Individuals are only entitled to the National Living Wage (NLW)/National Minimum Wage (NMW) for the hours they are working.

Therefore, furloughed workers, who are not working, must be paid the lower of 80% of their salary, or £2,500 even if, based on their usual working hours, this would be below NLW/NMW.

However, if workers are required to for example, complete online training courses whilst they are furloughed, then they must be paid at least the NLW/NMW for the time spent training, even if this is more than the 80% of their wage that will be subsidised.

Holiday pay

Past overtime, fees, commission, bonuses and non-cash payments

Previous guidance on salary to be included for the calculation of the 80% furlough pay specifically excluded fees, commission, bonuses etc.

The updated guidance states that the starting point is any regular payments you are obliged to pay your employees, and that this includes wages, past overtime, fees and compulsory commission payments. However, discretionary bonus (including tips) and commission payments and non-cash payments should still be excluded. It is assumed that compulsory commission is contractual commission.

To calculate the gross salary that includes these allowable variables, it is sensible for employer to adopt the same process as the process outlined by HMRC for zero hours/variable pay contracts:

For variable/zero hours contracts, if the employee has been employed (or engaged in an employment business) for a full twelve months prior to the claim, you calculate normal pay as the higher of either:

  • The same month’s earnings from the previous year, or
  • The average earnings from the 2019/2020 tax year.

If the employee has been employed for less than a year, you can claim for an average of their monthly earnings since they started work. If the employee only started in February 2020, use a pro-rata for their earnings so far. Once you have worked out how much of an employee’s salary you can claim for, you must then work out the amount of Employer NIC and minimum employer pension contribution you are entitled to claim.

The furlough grant remains at 80% of gross salary, subject to the £2,500 per month maximum cap.

Benefits in kind and salary sacrifice schemes

The reference salary should not include the cost of non-monetary benefits provided to employees, including taxable Benefits in Kind. Where the employer provides benefits to furloughed employees, these should be provided in addition to the wages that must be paid under the terms of the Job Retention Scheme.

Similarly, benefits provided through salary sacrifice schemes (including pension contributions) that reduce an employee’s taxable pay should also not be included in the reference salary, i.e. the post-salary sacrifice figure is the gross pay on which the 80% furlough pay is calculated.

Normally, an employee cannot switch freely out of a salary sacrifice scheme unless there is a life event. HMRC agrees that COVID-19 counts as a life event that could warrant changes to salary sacrifice arrangements, and the employee or employer could temporarily suspend the salary sacrifice arrangement on this basis. All changes should be notified in writing, as it is a contractual change to terms and conditions of employment.

Employees on a fixed term contract

Employees on fixed term contracts can be furloughed. Their contracts can be renewed or extended during the furlough period without breaking the terms of the scheme. If a temporary contract is unexpectedly extended during a furlough period, such that the term of the contract exceeds 2 years, employment law advice should be sought and additional employment rights may be introduced as a result.

Where a fixed term employee’s contract ends because it is not extended or renewed you will no longer be able claim the grant for them.

Minimum furlough periods

Any employees you place on furlough must be furloughed for a minimum period of 3 consecutive weeks for an employer claim to be made. When they return to work, they must be notified in writing that they are being taken off furlough.

HMRC have now confirmed that employees can be furloughed multiple times, but each separate instance must be for a minimum period of 3 consecutive weeks. This allows for employers to reinstate employees if work is available for a period of time and then re-furlough them if necessary.

Each change of employment status must be evidenced in writing.

Furlough claims

When a claim is made via HMRC’s portal, HMRC will check your claim, and if you’re eligible, pay it to you by BACS to a UK bank account.

You must pay the employee all the grant you receive for their gross pay, no fees can be charged from the money that is granted.

HMRC will be retrospectively carrying out compliance checks on the claims made to ensure employers have claimed correctly.

Employees remain on payroll with furlough pay, and PAYE tax/NIC will be deducted in the normal way from the payments made. This includes pension contributions (both employer contributions and automatic contributions from the employee), unless the employee has opted out or stopped saving into their pension.

Employees still have the same rights at work, including:

  • Statutory Sick Pay
  • maternity and other parental rights
  • rights against unfair dismissal
  • redundancy payments

Grants cannot be used to substitute redundancy payments. HMRC will continue to monitor businesses after the scheme has closed.

How to treat grant payments in RTI

Employers must report the amount of furlough grant received and paid to an employee through RTI, in the same way that normal pay is reported.

RTI submissions should be made on or before pay day.

Where employers have continued to pay employees during a period of furlough, in advance of receiving any furlough payments under the furlough scheme, they do not need to make any further RTI submissions when they receive the grant that reimburses the employer for those payments made in advance.

Tax treatment of the grant

Payments received by a business under the scheme are made to offset these deductible revenue costs. They must therefore be included as income in the business’s calculation of its taxable profits for Income Tax and Corporation Tax purposes, in accordance with normal principles.

Businesses can deduct employment costs as normal when calculating taxable profits for Income Tax and Corporation Tax purposes.

Interaction between making claims and deferring payments of PAYE Tax & Class 1 NIC

When the Government ends the scheme

When the Government ends the scheme, you must make a decision, depending on your circumstances, as to whether employees can return to their duties. If not, it may be necessary to consider termination of employment (redundancy).

Employees that have been furloughed have the same rights as they did previously. That includes Statutory Sick Pay entitlement, maternity rights, other parental rights, rights against unfair dismissal and to redundancy payments.  They have continued employment service whilst on furlough.

Once the scheme has been closed by the government, HMRC will continue to process remaining claims before terminating the scheme.

Apprenticeship levy and student loans

Both the Apprenticeship Levy and Student Loans should continue to be deducted as usual. Grants from the Job Retention Scheme do not cover these.

Working for a different employer

HMRC previously stated that when on furlough, an individual cannot undertake work for the employer or another business.

The latest guidance states that, if contractually allowed, employees are permitted to work for another employer whilst you have placed them on furlough.

For any employer that takes on a new employee, the new employer should ensure they complete the starter checklist form correctly. If the employee is furloughed from another employment, they should complete Statement C.

Eligible individuals who are not employees

As well as employees, the grant can be claimed for any of the following groups, if they are paid via PAYE:

  • office holders (including company directors)
  • salaried members of Limited Liability Partnerships (LLPs)
  • agency workers (including those employed by umbrella companies)
  • limb (b) workers

The guidance below sets out specific considerations for those individuals who are paid via PAYE, but who are not necessarily employees in employment law. Unless explicitly set out below, all other guidance is applicable to these cases, and should be followed.

Office Holders

Office holders can be furloughed and receive support through the furlough scheme where they have been on payroll before 28 February 2020 with PAYE tax/NIC deducted. The furlough, and any ongoing payment during furlough, will need to be agreed between the office holder and the party who operates PAYE on the income they receive for holding their office. Where the office holder is a company director or member of a Limited Liability Partnership (LLP), the furlough arrangements should be adopted formally as a decision of the company or LLP, and confirmed in writing to the individual.

Company Directors

As office holders, salaried company directors are eligible to be furloughed and receive support through this scheme for salary that has been paid through the payroll and subjected to PAYE tax/NIC before 28 February 2020. The furlough pay is calculated by reference to that previously pay rolled salary.

Company directors owe duties to their company which are set out in the Companies Act 2006. If the company board of directors decide that one or more directors should be furloughed, this should be formally adopted as a decision of the Company, noted in the Company records and communicated in writing to the director(s) concerned as it is a change to the terms and conditions of engagement.

When furloughed, the director should not do work that they would carry out in normal circumstances which could generate commercial revenue or provides services to or on behalf of their Company. If they do, the terms of the furlough will be breached.

Where furloughed directors need to carry out particular duties to fulfil the statutory obligations they owe to their Company, they may do so provided they do no more than would reasonably be judged necessary for that purpose and to comply with their legal statutory duties.

This also applies to salaried individuals who are directors of their own personal service company (PSC).

Dividend income cannot be included, only income previously evidenced as subjected to PAYE tax/NIC.

Salaried Members of Limited Liability Partnerships (LLPs)

Members of LLPs who are designated as employees for tax purposes (‘salaried members’) are eligible to be furloughed and receive support through this scheme.

To furlough a member, the terms of the LLP agreement (or any such agreement between the LLP and the member) may need to be varied by a formal decision of the LLP, for example to reflect the fact that the member will perform no work in the LLP for the period of furlough, and the effect of this on their remuneration from the LLP. For an LLP member who is treated as being employed by the LLP the reference salary for this scheme is the LLP member’s profit allocation, excluding any amounts which are determined by the LLP member’s performance, or the overall performance of the LLP.

Agency Workers (including those employed by umbrella companies)

Where agency workers are paid through PAYE, they are eligible to be furloughed, including where they are employed by umbrella companies.

Furlough should be agreed between the agency, as the deemed employer, and the worker, though it would be advisable to discuss the need to furlough with any end clients involved. As with employees, agency workers should perform no work for, through or on behalf of the agency that has furloughed them while they are furloughed, including for the agency’s clients.

Where an agency supplies clients with workers who are employed by an umbrella company that operates the PAYE, it will be for the umbrella company and the worker to agree whether to furlough the worker or not.

Limb (b) Workers (Personal Service Company Directors)

Where Limb (b) Workers (Personal Service Company Directors) are paid through PAYE, they can be furloughed and receive support through this scheme. The furlough scheme only applies to income received via PAYE on payroll. The director cannot undertake any work for the PSC that generates commercial revenue or provides services to or on behalf of their company once they are furloughed, only statutory regulatory duties can be undertaken when on furlough.

The furlough grant does not apply to income received via dividends.

IR35 off payroll workers in the public sector

Guidance has been issued for IR35 Off Payroll workers who provide services to the public sector and are subject to PAYE tax/NIC under the IR35 off payroll rules, setting out the setting out the circumstances under which certain public sector contractors, ‘contingent workers’ may be eligible to be laid off and paid under the furlough scheme:

  • If their contract is ongoing and they are unable to work due to sickness, self-isolation, or the temporary closure of offices or other workplaces and working from home is not possible they may be furloughed.
  • The scheme can apply to those working on PAYE, through umbrella companies and via a personal service company.
  • It will not apply if their contract simply comes to an end and is not extended due to COVID-19.

There is guidance provided on how such workers should complete timesheets whilst on furlough to reflect the fact that the scheme covers 80% of pay, or £2,500 per month, whichever is lower. All calculations assume that for a full-time month, they are engaged for a maximum of 20 available working says per month.  If the contract is based on a daily rate, the 80% payment for the furlough grant is established for a full month by calculating the average daily pay and multiplying it by a maximum of 20 available days in the month. For hourly paid IR35 workers the same principle should apply, by calculating the average daily pay and multiplying this by 20. Calculations for IR35 workers who work part time (for example, 3 days a week) should use the same maximum of 20 working days in the month, so the calculated working days over a month for 3 days a week would be 12 days (3 days x 4 weeks).

Further details of the IR35 Off Payroll furlough rules are detailed in our article on this specific issue and the government information sheet can be found here.

Further information

HMRC’s guidance is constantly evolving and we will continue to update you as these updates emerge.

Please find below the government link that provides further detail about the scheme.

https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme

If you have any further queries, please contact Laura Parr in our Employment Tax team.